THE POSITION OF SOCIAL PARTNERS AND THE “OBLIGATION TO DISCONNECT” IN THE ACCORD SYNTEC

which executed a contract forfait-jours. Conversely, the exclusion from the reform of the concurrent employees’ obligation to disconnect, raised a debate: some experts criticised this choice, arguing that this tool would have increased the effectiveness of the reform. On the other side, trade unions underlined the risks concerning the introduction of the said workers’

obligation, intended as a mean to free employers from the duty to assure by themselves that the agreed business time would be respected, discharging this encumbrance on employees.

2.2 THE POSITION OF SOCIAL PARTNERS AND THE “OBLIGATION TO

tools individuated to enforce the right should be defined directly by law, clearly indicating that the employer cannot address requests to the employee during the rest periods. In addition, according to this trade union, the duration of the daily or weekly time slot of disconnection should correspond to the number of hours of rest currently assured to the employee by law or collective bargaining²⁹. Furthermore, another request, based on best practices adopted in Germany³⁰, concerns the introduction of specific instruments providing for the automatic erase of e-mails received by the workers during the period of absence, to allow them to reply to unread correspondence without suffering stress.

In relation to other main trade unions, CFDT shared the positions of CGT with reference to the importance to limit the working time also through a right to disconnect, even if with a less conflictual behaviour with reference to the legislator³¹.

From the employers’ side, main doubts have been raised by the representatives of small and medium enterprises. In detail, CPME underlined that the introduction of the right to disconnect in a troubled economic phase, together with other innovations provided by Loi Travail, represents a supplementary obligation bearing on employers³², that could augment the number of claims before the local Courts and endanger the economic recovery³³.

From a practical point of view, a first relevant attempt to discipline right to disconnect through collective bargaining was made in 2013, with the Accord National Interprofessionnel (ANI) executed on 19th June, that invited employers to experiment new initiatives to warn employees and managers about the importance of the safe utilization of company devices, even introducing periods of disconnection aimed to facilitate a better work-life balance³⁴.

29 CGT, Laissez-nous bien travailler toutes et tous, 18 December 2015, link:

http://www.ugict.cgt.fr/publications/cadres-infos/laissez-nous-bien-travailler-toutes-tous (last consultation: 27 October 2017).

30 Reference is made to the internal politicy of the German company Daimler, see M. KAUFMANN,Deutsche Konzerne Kämpfen gegen den Handy-Wahn, 17 February 2014, link: http://www.spiegel.de/karriere/erreichbar-nach-dienstschluss-massnahmen-der-konzerne-a-954029.html (last consultation: 5 November 2017), 1 ff. and I.

ODDO, ADAPTability/14 – BYOD: la nuova frontiera del lavoro “mobile”, link:

http://www.bollettinoadapt.it/adaptability13-byod-la-nuova-frontiera-del-lavoro-mobile/ (last consultation: 5 November 2017), 2014, 1 ff.

31 CFDT, Arrêtons de penser la durée de travail sur une base hebdomadaire, 3 Juin 2016, link:

https://www.cfdt.fr/portail/actualites/vie-au-travail/-arretons-de-penser-la-duree-de-travail-sur-une-base-hebdomadaire-srv1_367768 (last consultation: 27 October 2017) and CFDT, Forfait-jours: un relevé déclaratif assure santé et sécurité du salarié, 28 Septembre 2016, link: https://www.cfdt.fr/portail/theme/droits-des-salaries/forfaits-jours-un-releve-declaratif-assure-sante-et-securite-du-salarie-srv1_384157 (last consultation: 27 October 2017).

32 A. TONNELIER, Les petites entreprises entendent peser sur le scrutin présidentiel, 28 February 2017, link:

http://www.lemonde.fr/economie-francaise/article/2017/02/28/les-petites-entreprises-entendent-peser-sur-le-scrutin-presidentiel_5086759_1656968.html (last consultation: 25 October 2017).

33 T. DUBOIS, Loi Travail: le droit à la déconnexion à l’épreuve de la réalité, 6 January 2017, link:

http://www.paris-normandie.fr/actualites/economie/loi-travail--le-droit-a-la-deconnexion-a-l-epreuve-de-la-realite-XH7977198 (last consultation: 27 October 2017).

34 H. GUYOT,L’adaptation du droit du travail, op. cit., 2.

From 2014, the increasing diffusion of BYOD policies among several companies, and the growing number of digitized workers, imposed the topic referred to a better protection of work-life balance on the top of the agenda of social partners, and, afterwards, of Government and Parliament.

Hence, several agreements executed in last years tried to introduce a right to disconnect.

Among them, one of the most relevant is the one concerning the contrat forfait-jours, referred to professional firms, executed on 1st April 2014 by the trade unions CGT-CFDT and the employers’ organization Fédération SYNTEC.

The accord SYNTEC – concerning a professional sector of about 910,000 workers in France, 76% of them belonging to the category of office workers – prescribed a number of safeguards aimed to protect health, safety and social life³⁶ of employees who entered in the derogatory regime of contrat forfait-jours: in particular, article 4.8.1 deals with an obligation to disconnect.

This article, named “Temps de repos et obligation de déconnexion”, bestows to workers who have executed a contrat forfait-jours a right to a minimum and essential rest, to be guaranteed in case of exceptional extension of the working day, of 11 consecutive hours per day and of 35 consecutive hours every two weeks.

To assure that the rest periods will be respected, the accord SYNTEC introduces, with article 4.8.1, paragraph 5, a worker’s obligation to disconnect from company devices, and the possibility for the employer to verify its fulfilment through specific monitoring instruments. In addition, paragraph 7 prescribes that the employer shall be obliged to introduce, in the company regulation, rules and policies directed to guarantee to the employee the freedom to disconnect from the abovementioned tools.

The discipline contained in the accord SYNTEC represents one of the most relevant attempts made by social partners to assure to workers a better work-life balance.

Notwithstanding, it raised also some objections.

First of all, the accord is a collective agreement referred to only one specific category of workers. Besides that, the number of beneficiaries is further reduced because the possibility to disconnect is conferred only to employees who accepted the special regime of contrat forfait-jours. Moreover, the collective agreement substantially does not guarantee to workers a general

35 J.-F.FUNKE,La pratique du BYOD (“Bring Your Own Device”), JCP S, act., 2015, 36, 1 ff.;P.LUBET,S.

CULLAFROZ-JOVER,La souplesse du droit face à l’usage croissant du BYOD: étude sur la gouvernance des données au sein de l’entreprise connectée, 18 March 2015, link: https://www.altanalaw.com/medias/la-souplesse-du-droit-face-a-lusage-croissant-du-byod (last consultation: 2 November 2017).

36 A. D’ALANÇON,J.MARTINEZ,Mise en oeuvre du nouvel accord relatif aux forfaits-jours dans la branche des bureacux d’études (SYNTEC), JCP S, 2014, 1479, 4.

and wide right to deactivate company devices after work, but it only imposes to the employee an obligation to disconnect, in order to respect the minimal daily and weekly rest periods. For this reason, finally, the wording of the rule is not detailed and does not specify time and methods to exercise it, as appear from article 4.8.1, paragraph 7³⁷.

3 “LAVORO AGILE” AND THE “ITALIAN WAY” TO RIGHT TO DISCONNECT 3.1 A RIGHT FOR AGILE WORKERS: THE POINT OF VIEW OF THE ITALIAN LEGISLATOR

With reference to Italy, the debate about a law concerning the right to disconnect³⁸ and smart working concretely started in 2016, partially as a result of the initiative taken by the French legislator. Until last year, indeed, the respective regulatory framework appeared to be limited to collective bargaining and company practices.

In 2016, the Government, and in the meantime a group of members of Parliament, advanced two proposals to regulate this phenomenon, still enclosed in the more general framework of the discipline of smart working (in Italy, “lavoro agile”). These bills, identified as No. 2229 and 2233, were introduced in the Italian Senate.

The bill No. 2229, proposed by MPs Sacconi, D’Ascola, Marinello and Pagano, explicitly recognized the right to disconnect through article 3, paragraph 7, which indicated that the worker “have right to disconnect from technological devices and from on-line platforms without bearing any consequence on the prosecution of the labour relationship and on compensation”. In any case, the measures to benefit of the right to disconnect would have to be adopted respecting: i) the objectives agreed with the employer; ii) the implementing criteria set by the occupational health physician; and iii) the possible period of availability of the worker.

Following the scheme of bill No. 2233³⁹, introduced by the Government, the right to disconnect was regulated by article 16: this provision, concerning in general the form of the mandatory agreement to be executed between a worker and an employer to accede to smart

37 Ibidem.

38 M. MASCHKE,Digitalisation: challanges for company codetermination, ETUI Policy Brief, 2016, 7, 1 ff.;contra F. ROTONDI, Diritto alla disconnessione: perché vietare ciò che è già vietato?, 12 September 2016, link:

http://formiche.net/2016/09/12/diritto-alla-disconnessione-perche-vietare-cio-che-e-gia-vietato/ (last consultation: 9 October 2017), 1 ff.

39 V. PINTO, La flessibilità funzionale e i poteri del datore di lavoro. prime considerazioni sui decreti attuativi del

"Jobs Act" e sul lavoro agile, RGL, 2016, 2, 345 ff.; E. DAGNINO,Lavoro agile: una questione definitoria, 25 November 2015, link: http://www.bollettinoadapt.it/lavoro-agile-una-questione-definitoria/ (last consultation: 29 October 2017), 1 ff.;M.SACCAGGI,Primo commento al “lavoro agile”: finalità e ipotesi regolatorie, 2 November 2015, link: http://www.bollettinoadapt.it/primo-commento-al-lavoro-agile-finalita-e-ipotesi-regolatorie/ (last consultation: 29 October 2017), 1 ff.

working regime, established, for the parties, an obligation to indicate the technical and organizational measures functional to assure to the worker the right to disconnect from technological devices utilized to realize the performance.

The bills No. 2229 and No. 2233 of 2016 were then joined in a common proposal – bill No. 2233-B – passed by the Parliament as part of Law No. 81/2017⁴⁰.

In particular, Law No. 81/2017 deals with “lavoro agile” from article 18 to article 24 and represents a general reprisal of contents of bill No. 2233.

Article 18, paragraph 1 of Law No. 81/2017 confirms that smart working is not intended as a new labour agreement, but as a particular kind of dependent work, aimed to enhance competitiveness of companies and ease conciliation between work and private life. The agreement to accede to the smart working regime must be in written form and, as per article 19 of Law No. 81/2017, must regulate the activity that the worker could carry on outside the premises of the factory, also with reference to instruments and devices needed to realize the performance and to the way in which the employer can exercise his power of direction. Finally, the law passed on 10 May 2017 introduces other rights and guarantees for the smart workers, as the ones concerning formation (article 20), limits to the employer’s power of control (article 21), workers’ health and safety (article 22) and the extension of the mandatory assurance against injuries or professional illnesses also to the activity performed outside the factory (article 23).

The right to disconnect is dealt with by article 19 of Law No. 81/2017. The provision specifies that the written agreement between worker and employer must also regulate the rest periods of the employee and indicate the technical and organizational measures taken by the parties to assure to the worker the right to disconnect from company devices.

The Italian legislator – partially following the French example – has drafted the rule concerning the right to disconnect only as a cornice: no mention is made to time slots that might have to remain free from employer’s solicitations, or to specific instruments to ensure worker’s rest periods⁴¹. The right to disconnect is a mandatory element of the agreement that the parties of the labour relationship have to execute to accede to smart working regime, therefore its field of application is limited to smart workers, and less extended from the French rule. The content of the right, in any case, may be implemented by collective agreements. In addition, also in

40 In particular, the first part of Law No. 81/2017 is referred to measures to improve social and juridical protection of autonomous workers, while the second part deals with the discipline of smart working. With reference to the latter, see D. POLETTI, Il c.d. diritto alla disconnessione nel contesto dei "diritti digitali", Resp. Civ. e Previd., 2017, 1, 8 ff.

41 E. DAGNINO,I.MOSCARITOLO,Diritto alla disconnessione: un diritto di nuova generazione?, 19 September 2016, link: http://www.bollettinoadapt.it/diritto-alla-disconnessione-un-diritto-di-nuova-generazione/ (last consultation: 19 October 2017).

Italy the legislator excluded to enact an employee’s obligation to disconnect, embracing trade unions’ instances and in the light not to undermine the principle enshrined on article 2087 of Italian Civil Code, ascribing exclusively to the employer the duty to adopt all needed means to assure the protection of employees’ health.

3.2 ITALIAN SOCIAL PARTNERS: FIRST COLLECTIVE AGREEMENTS AND